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Forest Practices Authority v Anti-Discrimination Commissioner

Forest Practices Authority v Anti-Discrimination Commissioner

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Case Copied 7 April 2025 56 min read

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[2025] TASSC 19

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Forest Practices Authority v Anti-Discrimination Commissioner [2025] TASSC 19
PARTIES:	FOREST PRACTICES AUTHORITY;
DIRECTOR OF PUBLIC PROSECUTIONS
v
ANTI-DISCRIMINATION COMMISSIONER; THE HON GUY BARNETT, ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
FILE NO:	1366/2023
DELIVERED ON:	7 April 2025
DELIVERED AT:	Hobart
HEARING DATE:	8 November 2024
Written submissions 7, 21 February 2025
JUDGMENT OF:	Porter AJ
CATCHWORDS:

Human Rights – Jurisdiction and procedure – Tasmania – Functions of Anti-Discrimination Commissioner – Commissioner may reject complaint on specified grounds – Acceptance gives rise to investigation, liability to compulsory conciliation and possible referral to a tribunal for inquiry – Decision to accept complaint not amendable to judicial review under the Judicial Review Act 2000.

Anti-Discrimination Act 1998, s 64.
Edelsten v Health Insurance Commission (1990) 27 FCR 56; Harris v Bryce [1993] 41 FCR 388; Yoong v Chief
Executive of Medicare [2021] FCA 701, applied.
Byrne v Marles [2008] VSCA 78, 19 VR 612, considered.
Aust Dig Human Rights [53]

Human Rights – Jurisdiction and procedure – Tasmania – Complaint to Anti-Discrimination Commissioner defined as one made in relation to discrimination or prohibited conduct – Commissioner may reject a complaint that does not meet the definition – Test for rejection – Observation that complaint must allege in sufficient detail matters which are capable, if established, of amounting to discrimination or prohibited conduct within jurisdiction.

Anti-Discrimination Act 1998, s 64(1)(b).
Nestle v Equal Opportunity Board [1990] VR 805; Commissioner of Police v Reid [2000] TASSC 181, 9 Tas R
418, applied.

Aust Dig Human Rights [53]

REPRESENTATION:

Counsel:

Applicant: G Chen
Respondent: Submitted to the Court's jurisdiction
Intervener: J O'Farrell

Solicitors:

Applicant: State Litigation Office
Intervener: Crown Solicitor

Judgment Number:	[2025] TASSC 19
Number of paragraphs:	111

Serial No 19/2025 File No 1366/2013

FOREST PRACTICES AUTHORITY and the DIRECTOR OF PUBLIC

PROSECUTIONS v the ANTI-DISCRIMINATION COMMISSIONER and the HON

GUY BARNETT, ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT (REVISED)*	PORTER AJ 7 April 2025
Introduction

1 This is an application for judicial review under the Judicial Review Act 2000 (the JRA). The respondent Commissioner has filed a notice of submission and the Attorney-General (the Attorney) has intervened in the proceedings. On 8 May 2023 the Anti-Discrimination Commissioner accepted a complaint "for investigation" under the Anti-Discrimination Act 1998 (the ADA) lodged by Alan Robert Smith against the applicants, the Forest Practices Authority (the FPA) and the Director of Public Prosecutions (the DPP). The Commissioner provided written reasons for doing so.
2 The background is that, upon a referral from the FPA, Crown prosecutors working in 'summary prosecutions' with the DPP filed two complaints against Mr Smith in the Magistrates Court. The complainant in those proceedings was named as Dr Peter Volker, then Chief Forest Practices Officer of the FPA. The first complaint was filed on 29 March 2020; the second on 5 October 2022. Each contains five…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] TASSC 19
Decision Date: 7 April 2025

CaseChat Overview and Summary

In this matter, the Forest Practices Authority (FPA) sought review of a decision by the Anti-Discrimination Commissioner (ADC) to accept a complaint against the FPA for alleged discriminatory conduct under the Anti-Discrimination Act 1998 (Tas). The ADC's acceptance of the complaint triggered an investigation, the obligation to engage in compulsory conciliation, and the potential for referral to a tribunal for inquiry. The FPA challenged the ADC's decision to accept the complaint, arguing it was in error, and sought judicial review of the ADC's decision under the Judicial Review Act 2000 (Tas). The Federal Court was required to determine whether the ADC's decision to accept the complaint was subject to judicial review.

The court considered the scope of judicial review of decisions by the ADC under the Anti-Discrimination Act. The court noted the statutory provisions allowing the ADC to reject a complaint on certain grounds, but found that once the ADC accepts a complaint, the process of investigation and conciliation is commenced, and this decision is not subject to judicial review. The court held that the ADC's decision to accept a complaint is a procedural step that does not involve the exercise of a statutory power or discretion, and therefore does not give rise to a decision that is amenable to judicial review under the Judicial Review Act. The court found the ADC's decision to be immune from review, and dismissed the FPA's application.

The court's decision clarified the limited scope of judicial review of decisions by the ADC under the Anti-Discrimination Act. The ADC's decision to accept a complaint is not subject to review, as it does not involve the exercise of a statutory power or discretion. The court's decision may have implications for the ability of parties to challenge the ADC's decisions, and highlights the importance of understanding the limitations on judicial review of administrative decisions. The Federal Court dismissed the FPA's application for review of the ADC's decision to accept the complaint, and made no orders.

Orders